Category Archives: Diluting international law

U.S. Counter-terrorism Strategy to Rely on Surgical Strikes, Unmanned Drones

U.S. Counter-terrorism Strategy to Rely on Surgical Strikes, Unmanned Drones

By Ken Dilanian
June 30, 2011″LA Times”

The Obama administration has concluded in a newly released counter-terrorism strategy that precision strikes and raids, rather than large land wars, are the most effective way to defeat Al Qaeda.

“Al Qaeda seeks to bleed us financially by drawing us into long, costly wars that also inflame anti-American sentiment,” John Brennan, President Obama’s counter-terrorism advisor, said in a speech Wednesday unveiling the new strategy. “Going forward, we will be mindful that if our nation is threatened, our best offense won’t always be deploying large armies abroad but delivering targeted, surgical pressure to the groups that threaten us.”

Brennan, a longtime former CIA officer, spoke at the Paul H. Nitze School of Advanced International Studies at Johns Hopkins University in Washington, as the White House posted the new strategy on its website.

The strategy codifies policies the administration has been pursuing for 2 1/2 years, and much of it mirrors the practices of the Bush administration, Brennan said.  But at its core is a repudiation of the thinking that sent large numbers of American troops to Iraq and Afghanistan. Al Qaeda’s leadership has been decimated, Brennan said, thanks not to the wars but to “unyielding pressure” from U.S. operations to kill the group’s leaders one by one in the Afghanistan-Pakistan border region.

The more acute threats to the U.S. these days come from Al Qaeda affiliates in Yemen and perhaps Somalia, U.S. officials have said, and no one is contemplating sending large numbers of American troops to those countries.

Instead, the U.S. will pursue a war in the shadows, one relying heavily on missile strikes from unmanned aerial drones, raids by elite special operations troops, and quiet training of local forces to pursue terrorists.

Brennan said the recently announced troop reduction in Afghanistan would have no impact on U.S. counter-terrorism strategy in that country and Pakistan, where, he said, the U.S. has been delivering “precise and overwhelming force” against militants.

In the peculiar dance that marks the administration’s discussions of this issue, Brennan did not explicitly mention the vast expansion of drone strikes the U.S. has undertaken in Pakistan since January 2009— 213 of them, according to the New America Foundation, which counts them through media reports. That is because the program technically is secret, even though it is widely discussed and openly acknowledged by U.S. and Pakistani officials in private.

Later, when asked whether a policy of targeted killing was appropriate for the United States, Brennan responded that the U.S. is “exceptionally precise and surgical in terms of addressing the terrorist threat. And by that I mean, if there are terrorists who are within an area where there are women and children or others, you know, we do not take such action that might put those innocent men, women and children in danger.”

He added that in the last year, “there hasn’t been a single collateral death because of the exceptional proficiency, precision of the capabilities that we’ve been able to develop.”

Brennan presumably was referring to covert strikes by the CIA and the Joint Special Operations Command, because in April, two American servicemen were killed by a Hellfire missile fired from a military drone after apparently being mistaken for insurgents moving to attack another group of Marines in southern Afghanistan.

Brennan’s willingness to boast about the precision of the drone strikes without actually acknowledging them underscores one of the implications of the Obama counter-terrorism strategy: It will be conducted largely in secret, without public accountability. When the military makes a mistake in a drone strike, as it has done in Afghanistan, there is an investigation and some transparency.

But when it comes to targeted killing by the CIA or clandestine special operations units, government officials are able to avoid public scrutiny, citing the need for secrecy. They are willing to make claims about limited civilian casualties, but are not willing to document those claims by, for example, releasing the video taken of each strike.

While members of Congress briefed on the drone program, including Sen. Dianne Feinstein (D-Calif.), back the administration’s claims that civilian casualties are minimal, other experts, including Bruce Riedel, a former CIA officer and Obama advisor, question how officials can be so sure.

Asked about this, the White House declined to comment.

Germany’s President justifies international aggression for economic reasons

Bonn, 26 May 2010

By Elias Davidsson

Germany’s President justifies international aggression for economic reasons

In an interview with Germany’s President, Mr. Horst Koehler on German Radio (Deutschlandsfunk), made on 22 May 2010 after his return from Afghanistan, he said:

 “A country of our significance, oriented towards and dependent upon foreign trade, should realize that in doubt, in a case of emergency, the use of military force is necessary in order to safeguard our interests, for example free trade routes, or to prevent entire regional instabilities which undoubtedly affect our trade opportunities, our jobs and our income.”

He added, concerning Afghanistan:

“But there will be deaths, not only among soldiers, but possibly also through accidents among those who help to build.  This is the reality of our life today.  One must also ultimately safeguard one’s interests and pay this price.  I find it difficult to say these things, but consider it unavoidable that we should face the reality.”

These declarations, amounting to the legitimization of colonialist gunboat policies, have been met by bewilderment within Germany. A number of citizens have lodged a criminal complaint against the President not only because his declarations undermine the German constitution (under which Germany’s armed forces may only be used to defend the territorial integrity of Germany, not its foreign trade), but because they express an intent by Germany – as expressed by Germany’s highest public official – to disregard fundamental principles of international law, such as the rules on the use of force in international relations.  By juxtaposing the general tenor of his comments with those regarding Afghanistan, President Koehler suggested that the occupation of Afghanistan may be prompted or justified by economic interests. He did not, however, identify these interests.

Should the German government and parliament fail to repudiate the aforementioned declarations by Germany’s President and fail to restate Germany’s unconditional commitment to the Principles of the UN Charter, particularly the ban on the use of force, it is possible that some UN member states would be compelled to reconsider their position towards and their relations with Germany.


Originaltext Horst Koehler (Deutschlandsfunk, 22. Mai 2010):

„Meine Einschätzung ist aber, daß insgesamt wir auf dem Wege sind, doch auch in der Breite der Gesellschaft zu verstehen, daß ein Land unserer Größe mit dieser Außenhandelsorientierung und damit auch Außenhandelsabhängigkeit auch wissen muß, daß im Zweifel, im Notfall auch militärischer Einsatz notwendig ist, um unsere Interessen zu wahren, zum Beispiel freie Handelswege, zum Beispiel ganze regionale Instabilitäten zu verhindern , die mit Sicherheit dann auch auf unsere Chancen zurückschlagen negativ durch Handel, Arbeitsplätze und Einkommen. Alles das soll diskutiert werden und ich glaube, wir sind auf einem nicht so schlechten Weg.“

„Aber es wird wieder, sozusagen, Todesfälle geben. Nicht nur bei Soldaten, möglichweise auch durch Unfall mal bei zivilen Aufbauhelfern. Das ist die Realität unseres Lebens heute. Man muss auch um diesen Preis, sozusagen, seine am Ende Interessen wahren. Mir fällt das schwer, das so zu sagen,aber ich halte es für unvermeidlich, dass wir dieser Realität ins Auge blicken.Deshalb halte ich es auch nach der Diskussion über den Begriff Krieg oder kriegsähnlichen Zustand oder bewaffneter Konflikt für ganz normal, wenn die Soldaten in Afghanistan von Krieg sprechen und ich habs auch für normal gehalten, dass ich auch in dem Gespräch mit Ihnen, dann nicht ne verkünstelte andere Formulierung gewählt habe.“

Undermining the US Constitution and the rule of law

International Herald Tribune
Rewriting the rules of American justice
Sunday, July 27, 2008

We are, sadly, accustomed to hearing President George W. Bush’s lawyers justify this administration’s ceaseless efforts to undermine the Constitution and the rule of law: intrusions on privacy, warrantless wiretapping, indefinite detention, torture.

It was bad enough when Attorney General Alberto Gonzales helped write and defend these policies; he always made clear his loyalties were to Bush, not the United States. But it was appalling to hear his successor, Michael Mukasey – who was supposed to be better – demanding that Congress further expand Bush’s power to detain foreigners without charges or reliable evidence, and further evade judicial oversight.

In a speech last Monday, Mukasey renewed the administration’s criticism of Supreme Court rulings on detainees. The court has ruled in several cases that Bush and then Congress, at his insistence, illegally denied the Guantánamo prisoners the basic human right to challenge their detention in court.

He demanded that Congress swiftly pass measures that would sharply reduce the possibility that any Guantánamo prisoner could have a fair hearing.

Mukasey offered six principles that should drive such legislation – including keeping secrets secret, limiting prisoners’ access to evidence, and not inconveniencing the military. America’s chief law enforcement officer never mentioned the rule of law or justice.

Mukasey said Congress should allow the government to introduce secret evidence at habeas corpus hearings and limit prisoners’ rights to introduce testimony or call witnesses. He derided the notion that detainees should get “a full dress trial.” He even expressed doubt that prisoners needed to attend their hearings.

All of this, as usual, was couched in apocalyptic terms. “We simply cannot afford to reveal to terrorists all that we know about them,” he said, as if anyone had ever suggested that. There are ample ways to protect secrets during a trial.

The fear-mongering did not stop there. Referring to the possibility that some of the few hundred men at Guantánamo might be found innocent and then seek asylum in the United States, Mukasey said “all of these people, every single one of them, are aliens captured abroad in essentially battlefield conditions who have absolutely no right to be here.” He said there was a risk that a court could “release into our communities people who could pose a significant danger.”

That is not true.

Many prisoners in Guantánamo have been proved to be no threat, and were not detained under anything like battlefield conditions. More than 20 are now languishing there after being cleared for release, including Chinese Muslims known as Uighurs. They cannot be returned to their home countries for fear of torture or worse, but the administration refuses to allow them into the United States. That has made it impossible to get European countries to accept them.

No one is arguing that terrorists should be set free. What the administration fears is that hearings for any prisoner will reveal how much abuse has been meted out by American interrogators and how thin and tainted the evidence is against most of the Guantánamo prisoners.

It would be catastrophically irresponsible for Congress to rewrite the rules of justice according to Mukasey’s cynical template. There has been too much injustice already.


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Troops told Geneva rules don’t apply to Taliban

Canadian troops in Afghanistan have been told the Geneva Conventions and Canadian regulations regarding the rights of prisoners of war don’t apply to Taliban and al-Qaeda fighters captured on the battlefield. That decision strips detainees of key rights and protections under the rules of war, including the right to be released at the end of the conflict and not to be held criminally liable for lawful combat.
The Globe and Mail (Toronto) 31 May 2006
Troops told Geneva rules don’t apply to TalibanPAUL KORING

WASHINGTON — Canadian troops in Afghanistan have been told the Geneva Conventions and Canadian regulations regarding the rights of prisoners of war don’t apply to Taliban and al-Qaeda fighters captured on the battlefield.

That decision strips detainees of key rights and protections under the rules of war, including the right to be released at the end of the conflict and not to be held criminally liable for lawful combat.

“The whole purpose of those regulations is to know if Geneva applies,” said Amir Attaran, a law professor at the University of Ottawa who has been pressing the Defence Department for details of its detainee policy for months.

The 1991 Canadian regulations — developed during the Persian Gulf war — included provisions to hold tribunals to determine a detainee’s status under Geneva if there is any doubt.

Captured fighters don’t deserve these rights because this isn’t a war between countries, says Lieutenant-General Michel Gauthier, who commands the Canadian Expeditionary Forces Command and thus oversees all Canadian Forces deployed abroad.

“They are not entitled to prisoner-of-war status but they are entitled to prisoner-of-war treatment,” he said, asserting that all detainees are humanely treated.

“The regulations apply in an armed conflict between states, and what’s happening in Afghanistan is not an armed conflict between states. And therefore there is no basis for making a determination of individuals being prisoners of war,” he said.

Since Ottawa first sent fighting forces to Afghanistan after the Sept. 11, 2001, terrorist attacks, the government has said that anyone captured by Canadian Forces is treated humanely.  For years, detainees were quickly turned over to the U.S. military.  But, since last December, a new agreement with Kabul means Canadian troops now turn detainees over to the Afghan military, a move some have criticized because of the Afghans’ uneven record of observing human rights.

The decision to ignore the regulations without a legal test of whether detainees in Afghanistan are entitled to PoW status puts Canada “in a very odd situation. It’s completely irregular,” Prof. Attaran says.

He believes the government’s position that Geneva doesn’t apply may be correct but it needs to be tested in court.

According to Canada’s Prisoner-of-War Status Determination Regulations, “the commanding officer of a unit or other element of the Canadian Forces shall ensure that each detainee is screened as soon as practicable after being taken into custody to determine whether or not the detainee is entitled to prisoner-of-war status.”

Last updated before Ottawa sent a field hospital to Saudi Arabia in the middle of the Persian Gulf war, the regulations are designed to make sure Canadian soldiers understand and correctly apply the 1949 Geneva Conventions with respect to detainees.

But Canada, following the Bush administration’s lead in the United States, had decreed that there are no lawful combatants among the enemy in the current conflict and no screening was required.

Gen. Gauthier concedes that the change in policy could open the door to criminal charges being laid against Taliban fighters.

If a captured enemy fighter is implicated in killing a Canadian soldier — for instance, the Taliban fighter who launched the rocket-propelled grenade that killed Captain Nichola Goddard on May 17 — Ottawa might order him charged with murder and tried.

“I would seek guidance that clearly would come from outside the Defence Department if we wished to pursue this any further from a prosecutorial basis,” the general said.

The change aligns Canada’s position on the criminal culpability for battlefield violence with that of the United States. Omar Khadr, the only Canadian held at the U.S. prison in Guantanamo Bay, Cuba, is charged with murder for allegedly throwing a grenade that killed a U.S. Special Forces soldier.

Canada has provided few details on the fate of detainees its forces have handed over to U.S. authorities since 2002; neither the number nor the names have been made public. All the government has said is that none are currently at Guantanamo Bay. But it’s unknown whether they have been released, or are being held at the Bagram Air Base in Afghanistan or in secret prisons in Eastern Europe.

Similar secrecy cloaks what happens to detainees handed over to Afghan authorities by Canadian Forces fighting in Kandahar province. Gen. Gauthier indicated such transfers occur regularly, if not daily then several times a week. But no numbers are publicly available.

“Our default setting is transfer,” he said. “We haven’t held anybody for more than a few hours and we would prefer not to.”

Canadian troops do screen detainees — determining on the spot whether a captive poses a threat and should be handed over to the Afghan authorities or should be freed.  Gen. Gauthier said the decision to release those not considered dangerous happens routinely. Both decisions are checked up the chain of command, he said.

Prof. Attaran says the military’s policy on transfers doesn’t absolve Canada if detainees are then mistreated, tortured or killed.

He argues that if the government wants to be involved in this conflict, then it should take responsibility for those its soldiers detain, at least until a court or tribunal determines it can properly transfer them.

“It seems like they want to treat them as though they are radioactive,” he said.

But Gen. Gauthier said there is no risk that ordinary soldiers or junior officers could face war-crimes charges, even if detainees handed over to the Afghans were tortured or killed.

“Our intention certainly isn’t to leave junior folks hanging out to dry at all on this,” he said. “We are on firm legal ground we have no worries about the possibility of prosecution or allegations of criminal wrongdoing for having transferred detainees.”

Amnesty International concerned about US legalisation of inhuman treatment

PUBLIC STATEMENT January 5, 2006

Amnesty International USA Cites Great Concern Over President Bush’s Undermining of New Anti-Torture Law

Amnesty International USA today expressed great concern over the President’s official “signing statement” providing his interpretation of law in the Department of Defense appropriations bill which was intended to reaffirm the absolute prohibition on cruel, inhuman, and degrading treatment. The amendment was adopted overwhelmingly by the House and Senate to close all legal loopholes that might have allowed the U.S. government to engage in interrogation tactics that, individually or in combination, amount to torture and inhuman treatment. We are deeply disappointed that in the “signing statement,” the President chose to undermine long-standing U.S. policies against torture by asserting what amounts to a waiver on the prohibition on cruel, inhuman and degrading treatment.

The use of torture and cruel, inhuman and degrading treatment are firmly unlawful under U.S. federal statutes and international law. Amnesty International USA calls on President Bush to publicly withdraw his signing statement and reaffirm the United States’ opposition to acts that amount to torture, cruel, inhuman and degrading treatment. Further, Amnesty International USA calls on President Bush to support the establishment of a fully independent and impartial commission to investigate all allegations of torture and inhuman treatment by agents of the U.S. government around the world and prevent such acts from recurring in the future.

A Scofflaw in the White House: Undermining Respect for Law

On March 9, the Bush administration announced its decision to withdraw the United States from an International Court of Justice protocol on Consular Relations that the U.S. proposed in 1963 and ratified in 1969. We were the first country to invoke the measure to protect our citizens abroad after the taking of 52 U.S. hostages in Tehran, Iran in 1979… "The International Covenant on Economic, Social. and Cultural Rights" asserts the right of all human beings to freely pursue their social and cultural development and promotes the right to work, the right to unionize and the right to receive "social security, including social insurance", the right to have adequate living conditions, the right to be free from hunger and the right to education. We signed this covenant in 1977 and never ratified it, though 151 other nations have. "The Convention on Discrimination Against Women" that asserts equality of men and women and rejects discrimination against women, including women’s reproductive rights, was signed by the U. S. in 1980, and 179 nations have ratified it. We are the only industrialized country to fail to ratify it. The "Convention on the Rights of the Child" asserts broad and inalienable rights for children under 18 to be free from want, abuse and exploitation as well as to express their beliefs and ideas. The U.S. signed it in 1995 and 191 nations who signed have ratified. Only the U.S. and Somalia have not. The "UN Framework Convention on Climate Control (UNFCCC) and the Kyoto Protocol" are interesting testaments to the arrogance of the Bush scofflaw mentality when faced with the scientific reality of human over-use of fossil fuels causing global warming and climate change. We ratified the UNFCCC in 1992 and signed the Kyoto Protocol in 1998 but never ratified it. The Bush administration has now pulled out of negotiations. 189 other nations have ratified including Russia.. The "Rome Statue of the International Criminal Court(ICC) that has international jurisdiction to prosecute individuals (not states) for crimes such as genocide, as well as other crimes against humanity, has been signed by 120 nations, but Bush’s scofflaw gang does not want the U.S. to participate… 
Published on Tuesday, March 15, 2005 by

A Scofflaw in the White House: Undermining Respect for Law

by Tom Turnipseed


The Ides of March are upon us and, much like the situation with Julius Caesar in ancient Rome, we have an imperialist, authoritarian chief resident in the White House. Please understand, I do not believe President Bush will be physically attacked and assassinated like Caesar. However, as a sneering scofflaw whose pre-emptive use of force and lack of respect for international law and rules of global justice sets an egregious example, Bush is Caesar-like. A disrespect for law sets off distraught and deranged home-grown killers like Brian Nichols and Bart Ross. Nichols and Ross took out their disdain for laws intended to serve the ends of justice on the most obvious symbols of law and justice available, as they targeted and killed officers of the courts and judges and their families in murderous rampages.

Nichols surrendered on March 12 after apparently killing the trial judge in his rape trial that was being retried after the first trial ended in a "hung jury". He also will be charged with killing a court reporter, a sheriff’s deputy, and a special agent for the U.S. government. Ross was a 57 year old electrician and cancer victim who killed himself on March 9 after murdering the mother and husband of a U. S. District Judge in Chicago on February 28. The judge had dismissed his medical malpractice lawsuit and Ross had written a letter to President Bush "..warning the government once again not to violate my civil or human rights".

The terror of Nichols and Ross raises questions about how the Bush war-on-terror has also become a war against the international rule of law and protocols for global justice. Will we ever have security if we do not secure and abide by global rules of justice?

On March 9, the Bush administration announced its decision to withdraw the United States from an International Court of Justice protocol on Consular Relations that the U.S. proposed in 1963 and ratified in 1969. We were the first country to invoke the measure to protect our citizens abroad after the taking of 52 U.S. hostages in Tehran, Iran in 1979. The Bush scofflaw gang in the White House made the decision to ditch the international agreement because opponents of the death penalty have been using it to fight death sentences of foreigners on death row in the U.S.

Examples of exceptionalism to rules of international law currently being flouted and abrogated by the Bush administration abound. "The International Covenant on Economic, Social. and Cultural Rights" asserts the right of all human beings to freely pursue their social and cultural development and promotes the right to work, the right to unionize and the right to receive "social security, including social insurance", the right to have adequate living conditions, the right to be free from hunger and the right to education. We signed this covenant in 1977 and never ratified it, though 151 other nations have. "The Convention on Discrimination Against Women" that asserts equality of men and women and rejects discrimination against women, including women’s reproductive rights, was signed by the U. S. in 1980, and 179 nations have ratified it. We are the only industrialized country to fail to ratify it. The "Convention on the Rights of the Child" asserts broad and inalienable rights for children under 18 to be free from want, abuse and exploitation as well as to express their beliefs and ideas. The U.S. signed it in 1995 and 191 nations who signed have ratified. Only the U.S. and Somalia have not. The "UN Framework Convention on Climate Control (UNFCCC) and the Kyoto Protocol" are interesting testaments to the arrogance of the Bush scofflaw mentality when faced with the scientific reality of human over-use of fossil fuels causing global warming and climate change. We ratified the UNFCCC in 1992 and signed the Kyoto Protocol in 1998 but never ratified it. The Bush administration has now pulled out of negotiations. 189 other nations have ratified including Russia.. The "Rome Statue of the International Criminal Court(ICC) that has international jurisdiction to prosecute individuals (not states) for crimes such as genocide, as well as other crimes against humanity, has been signed by 120 nations, but Bush’s scofflaw gang does not want the U.S. to participate.

Makes you wonder why we would condone genocide.

The Bush administration has also ditched the "Comprehensive Nuclear Test Ban Treaty" that has been ratified by 120 nations; the "Land Mine Ban Treaty", ratified by 144 nations; and the "Biological and Toxin Weapons Convention", ratified in its original form by 144 nations.

We should not be known as a "rogue nation" with a scofflaw in the White House who chases "security" at the point of a gun. Only by seeking and respecting global law and justice can we have an opportunity for justice and security at home and abroad.

Tom Turnipseed is an attorney, writer and peace activist in Columbia, South Carolina.

American Disengagement with the International Criminal Court


ISSN 1522-211X     O J P C R
The Online Journal of Peace and Conflict Resolution
Issue 6.1

American Disengagement with the International Criminal Court: Undermining International Justice and U.S. Foreign Policy Goals[1]

Emily Krasnor

George Washington Williams, a black American who was the son of a freed slave, wrote an Open Letter on his experience in the Congo in which he stated that King Leopold of Belgium was guilty of “crimes against humanity.”[2]  Possibly one of the first uses of the phrase that is now often associated with criminal tribunals, Williams wrote these words over a century ago in 1890 in a letter to Leopold and the American Secretary of State.  Viewed by history as one of the first great dissenters on the nature of this colonial regime, this letter was drafted by a keen observer who, before embarking on his travels, had the seemingly idyllic notion of sending black Americans to work in the Congo state.  His comments are unique because they were the first to highlight the egregious human rights violations carried out by the administration of terror in the Congo with King Leopold holding effective control without ever stepping foot in the territory.  However, almost as important as this study and his choice of words is the fact that Williams actually charges a sitting head of state with responsibility for these crimes.  His letter about his experiences sent to the two leaders recognizes the endless power possessed by this one man, and still declares that, based on careful investigation, the King’s reprobate behavior and engagement with the territory should be scrutinized by an “International Commission.”[3]

While no such commission existed at the time, Williams clearly had an authority in mind to which Leopold should be held accountable for his “crimes against humanity”.  He understood that a strategy to systematically dominate the territory and control its precious resources was brutally being carried out as a policy emanating from the reaches of power in Belgium.  At the point of a gun, the native population was given a choice: either provide rubber, ivory and labor or else see their houses and villages destroyed or meet death.  Williams wrote about the tricks and deception that were used by Leopold’s agents to get the local chiefs to sign over their land.  He also debunks any perception that Leopold is any type of anti-slavery crusader, a persona he often boasted of at the time, by flatly accusing him of engaging in the slave trade while the traders themselves took African women as prisoners to be repeatedly raped.  The list goes on.  Williams dreamed of a legal mechanism to practically address the situation in Congo; he wanted to invoke the responsibility that accompanies the “never again” that reminds us today of the plight of the Jews in the 1930?s and 40?s.

A little over a century later, there is a forum that might have fit the dreams of Williams.  What was considered a utopian vision for many years has now become a reality in the form of the International Criminal Court (ICC) that officially came into existence in July of 2002.  It attempts to address the war crimes, crimes against humanity, the crime of genocide, and the crime of aggression[4], and acts that are considered an offense against the international community as a whole.  Knowing that there are important moments after large-scale devastation that cannot be squandered, it is no accident that the International Law Commission submitted the draft statue during the summer after the Rwandan genocide.  The Commission understood that there are important moments that cannot be wasted.

Though not the result of the international communitx’s first effort, the Court seeks to remedy the spectacular failures of national courts that often accompany weak states averse to carrying out investigation and prosecution of systematic abuse.  The ICC is a tool to be used in times when domestic justice for grave breaches of customary international law is unattainable.  As articulated in the Velasquez Rodriguez decision of the Inter-American Court of Human Rights, government has a responsibility to investigate whether an alleged crime may be attributed to government officials or civilians and to secure non-repetition of that crime.[5]  With methods built into the Court for determining when a state is unwilling or unable to prosecute or investigate a crime in good faith, no longer can a state shield an individual from criminal responsibility.[6]  In strengthening state responsibility, the court sets punishment as the norm when dealing with the worst crimes.

This is the institution that the Bush administration is so committed to destroy.  American opposition is not simply in the form of non-engagement but rather is in the form of a policy to undermine the Court.  The ultimate goal of the relentless campaign against the Court is to have its greatest champion one day question its utility.  In May 2002 the Bush administration chose to “unsign? the statute, a practice that is foreign to the Vienna Convention on the Law of Treaties.  Usually when a nation has signed a treaty and does not wish to go ahead with ratification, it simply lets it languish without ever depositing the instruments for ratification.  Moreover, the Bush administration wanted to renounce its signature with a flourish so it sent a formal notification to Secretary General Kofi Annan stating that is has no intention to ever become a party to the treaty and that, “the United States has no legal obligations arising from its signature on December 31, 2000.”[7]

It is necessary to point out that this attitude toward the Court did not begin with the Bush administration.  After five weeks of playing an active role in creating the multilateral document at the Rome Conference in 1998, the Untied States snubbed the gathering as one of only seven countries that voted against the statute; its opposition was in the company of Iraq, Libya, Yemen and Qatar.  President Clinton’s vision for the Court was as a “permanent “ad hoc? tribunal that the Security Council could be turn on and off like a faucet.”[8]  From where does the US objection to the Court emanate?  The American “nay? vote at the Rome Conference was partly a result of the US realization that the court would neither be subject to the manipulation of the Security Council nor part of a system of justice that must bow to the consent of a state in order to proceed with the investigating of a national.  But the main impetus against the Court was emanating from the Department of Defense.  Explanations that pointed to the extent of US troop deployment around the world were given to qualify the resistance.[9]  However, these fears seem hollow when one examines the Uniformed Code of Military Justice, which is actually stricter than the ICC statute.[10]  If the code is actually applied, according to the current policy, the U.S. should not have to worry about its nationals being prosecuted by a court on foreign soil.

Misperceptions of the Court also stem from distrust of foreign judges trying U.S. nationals, in particular U.S. military who are serving their country.  Suspicion of foreign judges trying U.S. nationals may also be considered unfounded as the U.S. has signed numerous extradition treaties; if an American citizen commits a crime on Spanish soil, for example, he would be tried in Spain for that crime.  Benjamin Ferencz, a prosecutor at Nuremberg, dismisses the U.S. position and says, “ICC prosecutors are more restricted than in any other court.”[11]  But yet “national security and our national interests? are continually cited in explanations of American opposition to the Court.  Clinton decided to sign the treaty only at the last possible moment when it had 137 signatories three weeks before he was to leave office.  Most observers believe he signed not with the intention to soon ratify but to secure a guarantee in the provisions of the statute that would exempt U.S. soldiers and government officials from its jurisdiction.[12]  Though United States opposition to the Court is exemplary of U.S. exceptionalism, the United States has also stood out alone in its opposition to the 1997 Mine Ban Treaty, the Optional Protocol prohibiting the use or recruitment of Child Soldiers as well as the Kyoto Protocol addressing global warming.

This paper will argue not only that it is advantageous to the United States to support the ICC, but that it is in its national interest to do so.  It is in the US interest to promote the freedom and dignity that are featured in the marquee of the current National Security Strategy released in August 2002; ignoring human rights would have a profoundly harmful effect on U.S. national interests including the “war on terror”.  To achieve the goals stated in the strategy, U.S. policy should not have to be a choice between “multilateralism” and “unilateralism.”  Instead U.S. policy should be described as “taking others? interests into account in our own decision making.”[13]  This document is mandated by Congress to be released every year; in 2002, its contents were meant to be purposely provocative.  What is most disturbing about current opposition to the International Criminal Court is its potential for damaging the ability of transitional democracies or fragile states emerging from conflict to bring domestic standards in conformity with those set out in the international legal standards of the Rome statute.  If the International Criminal Court is not considered fair and is not recognized by superpowers, it will be of limited use to the society that wishes to send an abusive leader to this international forum.  Only in an illusory political world can America react to its claims of “difference? by tempering its response to atrocities and grave human rights abuses.

Part II

One relevant theme of the International Criminal Court is that justice is best served domestically.  A flowering of domestic prosecutions would surely not be a problematic consequence of the ICC.  It must be noted that although the Rome Statute set up a supranational organization, it is not ostensibly a supranational court.  The Court encourages national jurisdiction for war crimes and crimes against humanity as it is the duty of every state to “put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.”[14]  The jurisdiction of the Court includes crimes that may give rise to universal jurisdiction under customary international law (even in the United States), however; the link is not transferred to the action but remains within the traditional conception of jurisdiction based on territory.

In addition to states just adapting laws to facilitate cooperation with the Court, states have also had to pass legislation that allow for the domestic prosecution of the crimes laid out in article 5 of the statute.  Article 17 of the statute, which details the essence of the Court’s system of “complementarity”, has provoked efforts to make national criminal justice systems more effective.  While some critics initially saw this principle as watering down the statute, it is now more commonly viewed as strengthening the object and purpose of the Court.  Both national courts and the ICC will have jurisdiction over the same offenses; this relationship invigorates the reach of the international community over “the most serious crimes.”  The ICC may also be effective as a deterrent in that “all nations, even major powers, will now more assertively monitor their own military operations, police, and penal institutions because of the possibility of the international embarrassment of an ICC investigation and trial.”[15]

A location of a court internal to the conflict would help to build a culture of rights by highlighting the international legal norms integrated into the domestic system.  Regional observation of the punishment of violators may act as a deterrent to future perpetrators.  Recalling the opinion of the Inter-American Court of Human Rights in the Barrios Altos Case, “the protection of human rights is the duty of every state towards the international community.”

Thus, the ICC is not universal jurisdiction but a system of universal justice with the Court actively behaving as a check on the functioning of domestic justice.  If a case is referred to the Court either by the Security Council, another state, or the prosecutor, the state in question cannot delay proceedings, conduct sham trials, or use false proceedings to shield an individual from criminal prosecution.  In fact some laws go beyond the minimum requirements set out in the Rome Statute by including universal jurisdiction provisions.  But what is most central to this new doctrine of mandated prosecution in a competent court of what the statute refers to as “situations? is the acceptance of an extended gaze of the international community.  A state’s national jurisdiction can swiftly be taken away if they fail to prosecute crimes that concern the international community as a whole.  No longer can an egregious act committed by the government or other official actors be judged as legal or permissible under internal procedure.  This building of an edifice of an emerging system of international justice, often times in places where such principles as equality under the law did not previously exist, is in essence an “intervention” of the Court.  Just as Louis Henkin disdains discussions of sovereignty as only restricting rights, the ICC may have the potential be the kind intervention that has been articulated as an emerging norm of customary international law.[16]  With most violent conflicts now taking place inside a state’s borders, this emerging norm of intervention, though originally articulated as a justification for military intervention, accomplishes the same goal by emphatically signaling that states can no longer use the concept of sovereignty as a shield.

Though some critics say that many international treaties and covenants are only worth the price of the paper upon which they are printed due to a lack of enforcement mechanisms, recent changes in domestic law as a result of the Rome Statute have produced more robust legal systems in such fragile states as the Democratic Republic of the Congo (DRC).  The DRC is a state that has endured a protracted civil war that has killed more than 3.3 million people, through direct combat as well as “treatable diseases and malnutrition, linked to displacement and the collapse of much of the countrx’s health system and economy”.[17]  After a bloody decade of war and over three decades of a dictator that personified the classic example of a “failed state”, the DRC has expressed a commitment to justice by signing the Rome Statute.  This commitment has the power to translate into a force that would permeate the political institutions of this society that has seen bloodier times than almost any other nation.  Second only to halting any ongoing violence is the task of establishing a durable rights framework that would prevent atrocities from recurring.

The DRC has completed the draft legislation needed to properly investigate and prosecute the crimes under the jurisdiction of the Rome Statute and to guarantee its full cooperation with the International Criminal Court.  The legislation proclaims the “irrelevance of the official capacity of the accused? for genocide, crimes against humanity and war crimes at the same time that these crimes have been integrated into the general legal system.  Jurisdiction over these crimes has even been extended to ordinary criminal courts.[18]  The power of this denunciation of head of state immunity cannot be underestimated as leadership in the DRC has been limited to a monopoly on violence aimed at quickly and effectively quelling any expression of dissatisfaction.  For many years the pillaging of the DRC has been systematic with the state apparatus as a facilitator of crimes that have killed significant numbers of the population.  The Permanent Representative of the Democratic Republic of the Congo to the United Nations acknowledges the difficulty in enforcing current Security Council resolutions pertaining to the violence in his country by saying,

“Those responsible for these crimes have not been brought to justice, and have even scoffed at Security Council resolutions calling for a peaceful resolution to the conflict.  This is evidence that impunity is one of the essential factors in the failure of peace and security in the region.”[19]

Such recognition of this state’s experiences has shown to have a direct impact on its decision to ratify.  Ratification may be seen as a pledge to remove some of the legal impediments that stand in the way of responsible leadership.  Ambassador Ileka goes on to signal a new chapter for the Congolese state:

“From our point of view, the ICC constitutes major progress in the fight against impunity.  A hand extended to the victims who have lost all hope.  A strong signal to all murderers, including those in the Great Lakes Region where the culture of impunity and bloody conflicts have caused the worst violation of human rights and humanitarian disasters.”[20]

Congo’s commitment to the authority and influence of international law is evidenced in the steps taken to implement the Rome Statute.  Not only has Congo given its Attorney General power to hand over a suspect to the court but the process of writing new legislation, required for parties to the Court, has reached farther by provoking an assessment of basic criminal law and procedure; this self-analysis led to the codification of principles, many of which were only previously provided for by customary Congolese law.  New domestic legislation, reflecting the ICC statute, has expanded on the discussion of torture as expressed in the Convention Against Torture.  While the Convention describes torture as a crime when committed for specific purposes under the color of officialdom, the state of Congo in response to the definition laid out in the Rome Statute, has discarded these qualifications.  Congo’s new legislation does not require torture to be committed for a certain purpose nor does it require that the individual be connected to the concentration of power; torture simply must be part of a “generalized or systematic attack”.[21]

Ratification of the Court has also forced the DRC to consult with Western non-governmental organization as well as African human rights groups on the best way to guarantee the rights of individuals in this country whose style of governing has for many years been labeled as the ultimate predator state.  This collaboration hopes to deter any charges that the Court might be irrelevant to ordinary citizens.  While it is imperative to determine specifically who committed atrocities, it is also necessary to redesign the institutions that were embedded with abusive practices.  Most often criminal policy is not haphazard but occurs as part of a political project that has been going on for years.

In no instance can a Congolese judge now dismiss a case for lack of jurisdiction over the crimes set out in the statute.  An example of the strength of the implementing legislation can be found in Article 16 which sets out the details of command responsibility by stating,

“All hierarchically superior military or civilian who fails to prevent his subordinate from committing an unlawful act by the present law or fails to restrain his subordinate who has committed a crime is punished as the author of the act committed by the subordinate.”[22]

The excuse of “just following orders? does not constitute a defense for criminal liability nor does the level of the official preclude culpability.  With recognition of the past, the new legislation also integrates Optional Protocol 1 (1977) of the Geneva Conventions as domestic law.  As this Protocol governs war crimes of internal armed conflicts, its relevance to the recent history of the DRC cannot be understated.  Previously there was a requirement to prosecute international armed conflict and the crime of genocide, however “there was no obligation to prosecute crimes against humanity and internal armed conflict that occurred in places such as Chile, El Salvador, Guatemala, Haiti, Sierra Leone, South Africa, or Uruguay.”[23]

If the Democratic Republic of Congo cannot support the myriad of new judicial standards it has established, the International Criminal Court, with a full spectrum of due process protections, steps in to fill this gap.  The Chief Prosecutor of the Court saw a need for this in June 2004 and ordered a special investigation into the grave crimes allegedly committed on the territory of the (DRC) since the advent of the Court.  The Rome Statute required implementing legislation that would give the ICC prosecutor the ability to conduct investigations inside the territory of all state parties and the Prosector’s decision was made in coordination with the DRC itself, other nations and international oorganizations.  The object and purpose of the Court acknowledges that sometimes the duty to prosecute, itself, is imposed upon those who have committed certain crimes.[24]  With the extended gaze of the international community and a more universally applied criminal code, ratification of the Rome Statute and the subsequent changes in the nation’s legal system may be considered a first step in a closer examination the elements that have fuelled the seemingly interminable conflict.

Though it is clear that the ICC may have a profound effect on transitional societies making them more responsible to international law, the Court should not be seen as an institution that is only important to these delicate states.  Conflict often knows no borders and can spillover into neighboring states.  The new standards can lessen the contagion of instability.  Infectious violence resulting from perpetual impunity for serious crimes afflicted the West African states of Sierra Leone, Liberia, and Guinea-Bissau in the 1990?s.  This case highlights the powerful link between government, alliances and conflict in a corner of Africa that is not typically of interest to the outside world.  When conflict spills over to small states that are not the focus of the world or even the region’s hegemons, a system of law and order that would prevent unwieldy power and unnoticed abuse becomes important.  Even though the ICC would not have jurisdiction over the atrocities orchestrated in Sierra Leone, looking ahead, the Ambassador to the United Nations commented:

“The negotiations for the Court’s establishment created greater awareness in the international community with respect to the principles of international criminal justice and the significant role that accountability can play in the consolidation of peace and reconciliation.”[25]

Currently all the states embroiled in that West African conflict, and those on the periphery of the conflict such as Senegal and Burkina Faso, have either signed or ratified the Rome Statute.  Perhaps past atrocities will define the nature of future government behavior with the awareness created by the Criminal Court statute as a catalyst.

The power of example should not be under estimated.  The hegemonic states of the world not only act, but act as precedent setters.  Even as other nations raise their standards of justice, the United States, the principle architect of Nuremberg and the ad hoc tribunals of the 1990?s, has ended up as “the only major nation in the world unwilling to contribute to the internationalization of the prosecution of offenses deemed crimes against humanity.”[26]  The American refusal to examine the content of its own conduct does not go unnoticed.  While playing a significant financial and policy role in the formation of these courts, the United States has still maintained that these mechanisms, as well as the international law that makes up their skeleton, are ultimately designed for other states.

Unrealized Compatibility

The US Campaign against the ICC: An Assault on American Security Interests

The paradox of U.S. foreign policy is reflected in the fact that it possesses a superior military and judicial system while shrinking from fully engaging in international law.  The U.S. is blind to the convergence of its interests with those of smaller or less powerful states.  What has become known as “atrocity law? during the last decade has reached the character of customary international law and yet the White House pursues an antagonistic policy towards states that are trying to open a new chapter in their history, create a culture of rights, and gain legitimacy in the international community.  The U.S. is effectively infringing on the obligation to prosecute that has been fortified by the Rome Statute.  With the developments in international law codified by the Statute, the apparent American scaling-back will have profound effects on both human rights around the world as well as American interests.

Concern for failed states, articulated in the National Security Strategy (NSS) 2002, is also a chief issue addressed by the International Criminal Court.  Threats to national security intensify when there are regimes or governments that function without accountability.  The National Security Strategy discusses “failing states? instead of “conquering states? as the greatest challenges of the twenty-first century.  With this in mind, one may say that President Bush’s “unsigning? actually represents an ironic assault on American interests.  The Court’s principle of “complementarity”, which specifies that it will only take up cases where the state exhibits an unwillingness or inability to prosecute or investigate a crime in good faith, has been shown to have a tangible impact on domestic legal systems after the treaty has been in force for only 2 years.  Earnest investigation and prosecution are intrinsic to a politically stable society that values justice and promotes human rights.  The ICC statute acknowledges that this sometimes cannot occur, thus it is ironic that the U.S. Department of State lists as one of its “alternatives? to the Court a directive to “encourage states to pursue credible justice at home rather than abdicating responsibility to an international body.”[27]  Under the heading, “Domestic Accountability? the U.S. government ignores the potential of the ICC to actually motivate national courts, particularly in weak or transitional states, to do what they are intended to do.  As a participant in the Court, the U.S. could guarantee that the international community does not ignore these states.  Though such domestic stability is often cited by the White House as a necessary part of the foundation for political order, the U.S. continues to reinforce its position as an outsider.

Even the cover letter of the National Security Strategy asserts that the U.S. position of “unparalleled military strength and great economic and political influence? can work to stand as a bulwark against “terrorists”, “tyrants”, “shadowy networks? “weak states” and “weak institutions”.  Acknowledging that various combinations of the aforementioned actors create conditions conducive to terrorism, insecurity, and human rights abuses, the document pledges to pursue the development and fortification of open societies.  However a premise underlying the multilateral institutions, specifically the International Criminal Court, that the White House often dismisses is that a state cannot survive without collaboration.  According to the National Security Strategy, American power implies privileges and duties that do not fit in to the real logic of interdependence.  Some degree of isolation is necessary to preserve this difference.  Almost in anticipation of criticism, the letter states, “we do not use our strength for unilateral advantage? though the rest of the document supports the notion that the U.S. will defend its right and its duty to act unilaterally.  American interests are highlighted as distinctive due to the moral and historical characteristics of the country.  It follows that American hegemony exists as the prerequisite for the National Security Strategy.

The American Servicemembers? Protection Act: Protecting American “Difference?

Are U.S. interests served by playing the role of the hostile outsider to the ICC?  Though one may think that U.S. hostility to the Court would have been tempered since the crime of terrorism on American soil shocked the world on September 11, 2001, the coalition-building efforts conducted after the event had no mollifying effect on the government’s stance.  Clinging as closely as ever to the right and duty to act alone without too many questions asked, the President signed into law the American Servicemembers Protection Act (ASPA), a virtual pledge of non-cooperation with the court in any shape or form, on August 2, 2002.[28]

While this bill purports (even by its title) to protect American men and women in uniform, many observers have commented that its real purpose is to establish non-jurisdiction over any U.S. foreign policy action.  In order to accomplish this, the current administration has exaggerated or even fabricated ridiculous scenarios of dutiful soldiers being prosecuted by judges who do not comprehend the American justice system.  When these scenarios are read with the statute, they fall far outside the Court’s subject matter jurisdiction, as the Court exists to prosecute crimes committed on a large-scale as part of a plan or policy.  But the true intentions are not buried too deeply.  In fact, one of Senator Jesse Helms (possibly the most outspoken leader of the campaign against the Court) four reasons why he viewed the Rome Statute as “irreparably flawed? was that the Court could engage in “second guessing U.S. foreign policy decisions.”[29]  Neither the checks and balances on the power of the prosecutor, the procedures on admissibility contained in article 17 of the statute, or the principle of “complementarity? could assuage U.S. defiance.  Thus under the guise of removing anyone in the U.S. military from the jurisdiction of the ICC as they would be subject to the gaze of the Court when operating in the territory of a state party, the US fortifies its own sovereignty with the effect of tempering the potency of the ICC as a powerful human rights enforcement mechanism.

The lengths to which the U.S. government would go in order to protect its actions from being scrutinized by any supranational body can best be seen in the extended reach of the pledge of non-cooperation.  The halls of the United Nations were not protected from the harmful effects of U.S. opposition to the Court: in May 2002 the United Sates forged Security Council Resolution 1422 in order to get immunity for six U.S. peacekeepers taking part in the mission in East Timor.  At the same time, a routine vote came up to renew the peacekeeping mission in Bosnia where 46 unarmed Americans participated in a UN sponsored mission training local police forces.[30]  After the great US effort in the crisis in the Balkans, the US held the Bosnian people hostage to the imperative of broadcasting to the world its virulent hostility to the ICC.  Through the threat of repeated veto of any peacekeeping mission in which the US was involved, Resolution 1422 was passed giving US peacekeepers immunity from International Criminal Court jurisdiction.  Only after pressure from other members of the Security Council and international non-governmental organizations in the wake of the allegations of Iraqi prisoner abuse at Abu-Ghraib did the US in June 2004 withdraw its proposal to exempt peacekeepers from the jurisdiction of the ICC.  While it was a small victory for the international community, it does not represent any US commitment to reassess its relationship with the Court.  Although, for the time being, the US is refraining from using Chapter VII of the UN Charter and Security Council authority to usurp the object and purpose of a treaty it opposed, it still refuses to remove all obstacles to the strengthening of democratic tendencies among the people of fragile states.

The ASPA undermines the achievement of international law in having reached a point where it governs a state’s treatment of its own citizens.  The original draft of the Act did not allow any U.S. military assistance to be extended to any country that has ratified the treaty with the exception of major U.S. allies, specifically those who are members of the NATO alliance.  Presented in Congress in May 2001 when the ICC had 30 ratifications, the bill was meant to thwart the other thirty ratifications needed for the treaty to enter into force.  The practice of withholding aid for foreign policy objectives has largely been conducted with states that have records of severe human rights violations since the Carter administration; this practice as articulated in the ASPA, took a new turn as the nations that ratified the ICC and reaffirmed a commitment to responsible government were faced with the threat of denied financial assistance.  Clearly good government and respect for the rule of law are central to U.S. foreign policy, though the practice that was conducted to enforce these goals went on a new trajectory with the movement to destroy support of the ICC.

With the subsequent entry into force of the Rome Statute, the central provision of the ASPA has been altered to take the form of what are now known as “Article 98 Agreements”.  Article 98 of the Rome Statute was originally meant to address, acknowledge and respect the existing status of forces based in other states.  In no way was it intended to allow a suspect to be shipped to a state that was not a party to the ICC.  However the US has manipulated the meaning of the article to forge agreements, conducted bilaterally, that require a signatory state to pledge not to surrender any U.S. government official, employee, or military personnel (including subcontractors) to the International Criminal Court.  Though the U.S. continues to contend that, “It is a misconception that the United States wants to use these Article 98 agreements to undermine the ICC?[31] its actions represent an inherent reservation to the embedding of certain crimes in customary international law.

Most of the states that have signed these bilateral treaties are small, fragile nations dependent on United States aid.  The pressure applied by the US through the threat of withholding funds, when successful, effectively forces a state to contravene a treaty to which it has entered in good faith.  In essence, the Rome Statute, a treaty that 94 states have ratified, has been improperly and unlawfully amended.  Sierra Leone and the Democratic Republic of the Congo are two of the states that have recently signed these agreements with the United States.  In essence, by engaging in these bi-lateral arrangements, these nations are giving up the right to try any American citizens if they have been suspected of committing genocide, war crimes, or crimes against humanity on their soil.  Reciprocally, the U.S. would not be bound to send any Congolese or Sierra Leonean citizens to the court.

Moreover, the ASPA pledges that no office or bureau of the United States government will interact with the court; this includes the delivery of evidence or suspects sought by the Court for prosecution or investigation.  These agreements open up the possibility that U.S. territory will become a safe haven for international war criminals or perpetrators of grave human rights abuses.  The US has turned over individuals wanted by the ICTR and the ICTY found within American borders; however, with the pledge of non-cooperation as a major element of the ASPA, what will be the fate of the suspects found in the US that are wanted by the ICC in the investigation of specific situations relating to war crimes, crimes against humanity or genocide?  Cooperation in the submission of evidence and arrest of one who has committed serious breaches of international law should know no borders, a guiding principal of the statute.  On the one hand the Bush administration demands the application of the rule of law, equal justice, and limits on the power of the state[32] and on the other hand it goes to great lengths to deflate the ICC?s power to build up the domestic accountability of state behavior.  Though the State Department suggests as an alternative mechanism to the Court “domestic accountability”, its actions tell a different story that lends no support to this professed goal of international justice.  It is important for governments to know that the ICC is a permanent fixture of the international community of states able to contemplate any human rights violations that fall within the statute.  As the crimes being examined by the court are offenses that shock the international community, it is the duty of the Court as a mechanism of nations, to prevent further abuse and punish the perpetrators.  The International Criminal Court, through its complementarity framework, forces nations to foster a culture of prevention in its scrutiny of domestic justice.  Nowhere in the alternatives laid out by the State Department is there concern for potential victims of human rights abuses while, in contrast with past tribunals; the ICC has more of a concentrated focus on the welfare of victims and potential victims.  The Article 98 agreements only serve to reinforce the shield of sovereignty effectively subverting Secretary General Kofi Annan’s “moral duty to act on behalf of the international community?[33] and the possibility that the ICC may function as a deterrent in that “all nations, even major powers, will now more assertively monitor their own military operations, police, and penal institutions because of the possibility of the international embarrassment of an ICC investigation and trial.”[34] 

Thus U.S. behavior may be seen as thwarting the prosecution of the most serious crimes.  Without an International Criminal Court, a leader or high ranking official who has committed grave atrocities would have to be apprehended to stand trial in a third country as fair and effective trials could not be conducted in his country of origin.  Even though the nature of the crime might give rise to universal jurisdiction, the decision of where to take him would be rife with divisive politics and possible claims of “victor’s justice? depending on the context; when an abusive official is taken to the ICC the event will only be marked by an elevation of the universality of the norms of international law backed up by all parties to the treaty.  The independence of the Court rests on the cooperation of states that may have competing political interests.  In some cases when the ICC may be needed, the perpetrators are no longer in power and are in the custody of a nearby state which is perfectly willing to hand them over to the ICC; international indictments by the Yugoslavia and Rwanda Tribunals, have shown to have the effect of isolating some rogue leaders.[35]  On the whole, the international community takes arrest warrants seriously.  In the case of Bosnia, the Legal Counsel of the Joint Chiefs of Staff clearly recognized the legal obligations that flow from these warrants considering both the United States and territory under its control as part of the jurisdiction covered by the order.[36]  The U.S. declaration of non-cooperation can create a safe area for perpetrators of serious crimes.  When war criminals or perpetrators of grave human rights violations remain “at large”, it is more difficult for the society that has endured these crimes to move on and place trust in its institutions.  Otherwise the ICC, an independent Court though formed by a coalition of states, is an instrument that actually takes the politics out of prosecution.


As with most treaties, the International Criminal Court will require the political might of the states parties for its enforcement and ultimate success at fulfilling its object and purpose.  The US declaration of a practical self-interest in its engagement with the court as a non-party threatens the norms that have evolved through the development over the last fifty years of international law.  As the crimes examined by the court are offenses that shock the international community, it is the duty of the Court, as a mechanism of nations, to prevent further abuse and punish perpetrators.  Though within the structure of the ICC, the emphasis is not solely on the perpetrator, but also is on the system that allows an individual to commit atrocities that provoke collective moral outrage.

Over one hundred years ago when George Washington Williams tried to provoke such outrage about the crisis in the Congo with his reports on “crimes against humanity? as the population of the territory during Leopold’s time was slashed roughly in half, he sought the judgment of an “international commission”.  Though none was available then, the International Criminal Court, now still in its infancy, claims that no one is immune from the reach of an independent tribunal that advocates for the highest standards of justice.

The “human dignity” that is repeatedly mentioned in the National Security Strategy most always, when threatened, is due to the encroachment of state power.  However, the US self-imposed isolation that works to preserve its difference effectively weaken the authority and influence of international legal standards that might act as part of the extended gaze of an international community of states committed to ending a norm of impunity and severe abuses of power.  While the International Criminal Court is no panacea for states emerging from mass atrocity, human rights abuses or prolonged armed conflict, it may act as one source of pressure to provoke states to pursue a rights-based rule of law.  The evangelical extension of U.S. foreign policy complete with implied infallibility reflects an acute inconsistency between its practice of foreign policy and its stated goals.

Just as the UN Charter represents a covenant among states to prevent “succeeding generations? from the scourge of war, the ICC represents an agreement to end the atrocities, like those that were committed during the 1990?s, and to bring the perpetrators to justice.  Though the Rome Statute is an imperfect document negotiated by over 150 states, it has already had the effect of challenging impunity, a norm that was only rarely questioned from Nuremberg up through the Yugoslavia Tribunal.  The International Criminal Court is too young for one to assert soaring judgments on its effectiveness, though one should look at the bigger picture within a future context.  The litigation in London concerning the ex-Chilean dictator, Augusto Pinochet, had a catalytic and emboldening effect on the courts in Chile.  This recent example underscores the potential for a positive spillover of this type of international litigation into domestic courts.  With the internalization of the highest human rights standards into national law, the Court has proven to be more than simply a reactive mechanism as it addresses the question of why certain atrocities occur.

Though the true efficacy of the International Criminal Court may be unproven, the credibility and legitimacy of any court evolves over time.  Perhaps a new administration occupying the White House in the not so distant future will be able to see the demonstrated professionalism of the Court and its ability to elevate domestic legal standards.  This administration might decide that American support would be advantageous to both international justice and U.S. policy goals.

Emily Krasnor currently is working at the United Nations.  She holds a Master of International Affairs with a concentration in human rights from the School of International and Public Affairs (SIPA) at Columbia University.  Her research interests include transitional justice, conflict prevention, and the evolving concept of sovereignty.

[1] Note: An abridged version of this article was previously published in the Fall 2004 “Law and War? issue of the Peace Review: A Journal of Social Justice.

[2] Adam Hochshild, King Leopold’s Ghost: A Story of Greed Terror, and Heroism in Colonial Africa, (New York: Mariner Books, 1998), pg 112.

[3] Ibid. pg 109.

[4]See Article 5 on “Crimes within the jurisdiction of the Court”, Rome Statute of the International Criminal Court.  Note that the crime of aggression named in article 5 of the Rome Statue has yet to be defined.   This crime was included only to be given meaning seven years after the Court is functioning per the procedure for amendments.

[5] Velasquez Rodriguez Decision, Inter-American Court of Human Rights Judgment of July 29, 1988.

[6] “Unable? to prosecute can also refer to legal impediments such as the granting of an amnesty by a head of state.  See Barrios Altos Case of the Inter-American Court of Human Rights that addresses an amnesty that removed the criminal character of a government sponsored incident.

[7] Letter to UN Secretary General Kofi Annan from Under Secretary of State for Arms Control and International Security John R. Bolton, May 6, 2002.

[8] University Seminars Series, Columbia University: Richard Dicker, April 9, 2003.

[9] David J. Scheffer, “The United States and the International Criminal Court? American Journal of International Law, Vol. 93 January 1999.

[10] University Seminars Series, Columbia University: Richard Dicker, April 9, 2003.

[11] “Genocide Expert Lauds War Crimes Court? Elizabeth Ganga, Journal News Sept. 28, 2002.

[12] David Stoelting, “Creating a Court for Crimes Against Humanity”, New York Law Journal, September 25, 2001.

[13] William F. Schulz, “What Price Human Rights”, The National Interest, 1999 Summer.

[14] Preamble, Rome Statute of the International Criminal Court

[15] James Griffin, “A Predictive Framework for the Effectiveness of International Criminal Tribunals”, Vanderbilt Journal of Transitional Law, Vol. 43, Number 2, March 2001.

[16] Kofi Annan “‘We the Peoples’: The Role of the United Nations in the 21st Century,” Millennium Report of the Secretary-General of the United Nations, 2002.

[17] International Rescue Committee Report: Conflict in Democratic Republic of Congo Deadliest Since World War II, Says The IRC, April 8, 2003.

[18] Lawyers Committee for Human Rights, “DRC Completes Draft Legislation for Implementing ICC Statute” and draft legislation at

[19] Ambassador Atoki Ileka, Permanent Representative of the Democratic Republic of the Congo to the United Nations, International Criminal Court Monitor, Issue 21, June 2002.

[20] Ibid.

[21] Lawyers Committee for Human Rights, “DRC Completes Draft Legislation for Implementing ICC Statute?

[22] Draft implementation legislation of the Democratic Republic of the Congo, July 2002.

[23] Michael P. Scharf, “Justice versus Peace? in The United States and the International Criminal Court, Eds. Sarah B. Sewall and Carl Kaysen (Lanham: Rowman and Littlefield, 2000) pg. 189.


The United States Dropped the Atomic Bomb of Article 16 of the ICC Statute: S.C. resolution 1422

“[Security Council] Resolution 1422 was adopted despite the reservations held by the international community. How and why the Council reached the majority of nine affirmative votes, despite the obvious opposition toward the Resolution by many Member States, remains a mystery.”

The United States Dropped the Atomic Bomb of Article 16 of the ICC Statute:  Security Council Power of Deferrals and Resolution 1422

Mohamed El Zeidy*

This Article discusses the recent adoption of the Security Council Resolution 1422 and its impact on international law. The Author asserts that the United States?a major proponent
of Resolution 1422?desires to immunize its leaders and soldiers from the International Criminal Court’s jurisdictional powers.

The Author begins by describing the drafting history of Article 16 and its legal consequences. Upon highlighting the most significant reasons for opposing Resolution 1422, the Author delineates how the Resolution mirrors the inconsistency with the United Nations Charter and the Law of Treaties. Finally, the Author concludes that Resolution 1422 should be rejected because it violates certain peremptory norms and it conflicts with the letter and the spirit of existing international laws.

(*) Prosecutor at the Office of the Attorney General of the Arab Republic of Egypt
(1997-present); First Leutenant, Special Guarding Unit, Assigned to Protect the
Former Prime Minister of Egypt, (1995-1997); First Leutenant, Special Forces Anti-
Terrorism Unit, Egyptian Ministry of Interior Affairs (1993-1995); L.L.B, Police
Academy, Cairo, Egypt, 1993; B.Sc., Bachelors of Police Science, Police Academy, Cairo,
Egypt, 1993; LL.M., Public Law, Cairo University, Cairo, Egypt, 1999; LL.M.,
International Human Rights Law, Irish Centre For Human Rights, National
University of Ireland, Galway, 2001; Ph.D. cand.